RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 August 2006
      DOCKET NUMBER:  AR20060000622


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. LaVerne Douglas               |     |Member               |
|     |Mr. Ronald D. Gant                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his Reentry (RE) Code "4" be
changed to a more favorable code.

2.  The applicant states, in effect, that his under other than honorable
conditions (UOTHC) discharge was upgraded to honorable; however, his RE
Code remained the same.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 March 2001, the date of his discharge.  The application
submitted in this case is dated 14 November 2005 but was received for
processing on 6 January 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records show he entered active duty (AD) on
26 March 1999, as a cannon crewmember (13B).  He was advanced to pay grade
E-2 effective 26 September 1999.

4.  Charges were preferred against the applicant on 4 January 2000 for
being absent without leave (AWOL) from 19 November 1999 to 26 December
1999.

5.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification
Record), shows that he was AWOL from 19 November through 29 December 1999
(38 days).




6.  On 4 January 2000, he consulted with counsel and voluntarily requested
discharge for the good of the service in lieu of trial by court-martial,
under the provisions of Army Regulation 635-200, chapter 10.  In doing so,
he acknowledged guilt to the offense charged and acknowledged that he might
encounter substantial prejudice in civilian life and might be ineligible
for many or all benefits administered by the VA if a discharge under other
than honorable conditions was issued.  He also elected not to submit a
statement in his own behalf

7.  On 30 January 2001, the separation authority approved the applicant’s
request for discharge and directed that he be discharged under other than
honorable conditions (UOTHC).

8.  The applicant was discharged on 21 March 2001, in the pay grade of E-1.
 He had a total of 1 year, 10 months, and 18 days of creditable service and
had 38 days of lost time due to AWOL.

9.  Item 26 (Separation Code), of the applicant's DD Form 214, shows he was
assigned a separation code of "KFS."  Item 27 (Reentry Code), of this same
form, shows he was assigned a RE Code "4."

10.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 30 August 2004.  The ADRB voted to grant relief
in the form of an upgrade of characterization of service to general, under
honorable conditions.  However, the Board determined that the reason for
discharge was proper and equitable and voted not to change it.

11.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Chapter 10 of that regulation provides, in
pertinent part, that a member who has committed an offense or offenses, for
which the authorized punishment includes a punitive discharge, may at any
time, after the charges
have been preferred, submit a request for discharge for the good of the
service,
in lieu of trial by court-martial.  A discharge under other than honorable
conditions is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

13.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

14.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned reentry codes, based on
their service records or the reason for discharge.  Army Regulation 601-210
covers eligibility
criteria, policies, and procedures for enlistment and processing into the
Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation
prescribes basic eligibility for prior service applicants for enlistment.
That chapter includes a list of Armed Forces reentry codes, including RA RE
codes.

15.  RE–4 applies to persons not qualified for continued service by virtue
of being separated from the service with non-waivable disqualifications
such as persons discharged for the good of the service in lieu of trial by
court-martial.

16.  Army Regulation 635-5-1 states that separation codes are three-
character alphabetic combinations, which identify reasons for, and types of
separation from active duty.  The primary purpose of a separation code is
to provide statistical accounting of reasons for separation.  They are
intended exclusively for the internal use of DOD and the military services
to assist in the collection and analysis of separation data.  It notes that
"KFS" is the appropriate separation code for individuals separated for the
convenience of the Government in lieu of trial by court-martial.

17.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5
establishes the proper reentry codes to assign to soldiers separating from
the Army.

18.  A "cross-reference" chart, provided by officials from the Separations
Branch at the U.S. Army Human Resources Command, confirms that Reentry Code
"4" is the appropriate RE code for individuals who receive an SPD code of
"KFS."






DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations. 

2.  The type of discharge directed and the reasons for that separation were
appropriate, considering all of the facts of the case. 

3.  The applicant's separation code, "KFS" is consistent with the reason
for his separation and the RE Code applied to his DD Form 214 is consistent
with the separation code; therefore, the applicant is not entitled to a
change of his separation code or his RE Code.

4.  The applicant has provided no evidence to show that the RE Code issued
to him at the time of discharge was improper or inequitable or should be
changed now.

5.  The evidence shows that the applicant’s UOTHC discharge was upgraded to
general, under honorable conditions, not honorable as the applicant
contends, and the ADRB determined that the reason for discharge was both
proper and equitable, and voted not to change it.  The ADRB did not change
his RE Code at the time his discharge was upgraded.

6.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 March 2001; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 20 March 2004.  The applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_RDG ___  _PMS___  _LMD___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Paul M. Smith_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000622                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060829                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20010321                                |
|DISCHARGE AUTHORITY     |AR  635-200, chapter 10                 |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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